In re Saleem Hassan MASRI, Respondent
File A91 890 751 - Phoenix
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided November 30, 1999
Interim Decision #3419
(2) Information provided in an application to adjust an alien‘s status to that of a lawful tem porary resident under section 210 of the Act is confidential and prohibited from use in rescis sion proceedings under section 246 of the Act, or for any purpose other than to make a deter mination on an application for lawful temporary residence, to terminate such temporary res idence, or to prosecute the alien for fraud during the time of application.
Jose A. Bracamonte, Esquire, Phoenix, Arizona, for the respondent
David Peters, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEIL MAN, HURWITZ, VILLAGELIU, COLE, ROSENBERG, MATHON, GUEN DELSBERGER, GRANT, and MILLER, Board Members. Concurring Opinion: HOLMES, Board Member, joined by FILPPU, JONES, and MOSCATO, Board Members.
ROSENBERG, Board Member:
In an order dated January 15, 1998, an Immigration Judge terminated rescission proceedings brought against the respondent under section 246(a) of the Immigration and Nationality Act,
The record reflects that the respondent‘s status was adjusted on December 1, 1990, from that of lawful temporary resident to lawful perma nent resident pursuant to the special agricultural worker (“SAW“) provi sions set forth at section 210 of the Act,
The Service also asserted that on August 6, 1995, the purported employer signed a sworn statement in which he declared that the Form I 705 was not signed by him, that the respondent never resided with him and that, in fact, he never had met the respondent. Therefore, in the decision that gave rise to the rescission proceedings before the Immigration Judge, the Service found that the evidence previously submitted by the respondent lacked credibility and that he had failed to establish performance of 90 days of agricultural employment during the requisite period. The Service con cluded that the respondent‘s adjustment of status was the result of fraud or willful misrepresentation with regard to his lawful temporary residence application and should be rescinded.1
Pursuant to
In his January 15, 1998, decision, the Immigration Judge found that to prove its allegations, the Service sought to rely exclusively on information furnished by the respondent in applying for legalization under the SAW program. The Immigration Judge further found that the use of this informa tion was in violation of the confidentiality provisions contained in section
By letter dated January 26, 1999, we notified the parties of the certifi cation and informed them of their right to make representations before the Board, including the right to request oral argument and to submit a brief. In addition, we requested that they address the following two specific issues: (1) whether use of the information provided by the respondent in his SAW application is barred under the confidentiality provision listed in section 210 of the Act; and (2) whether the Board has jurisdiction over this case in light of the fact that the Service and its Administrative Appeals Unit (“AAU“) have exclusive jurisdiction over the initial determination of the application for lawful permanent residence. Both parties responded to our letter by filing briefs, which have been included in the record.
II. ISSUES ON CERTIFICATION
There are two principal issues before us. The first issue is the scope of our jurisdiction in proceedings involving rescission of adjustment of status granted pursuant to section 210 of the Act. The second issue is the effect of the confidentiality provision in section 210 of the Act.
On certification, the Service argues that rescission proceedings pur suant to section 246 of the Act constitute a proper forum in which to rede termine the respondent‘s eligibility for temporary residence and adjustment of status. The Service urges the Board to consider the evidence originally provided, notwithstanding the statutory bar under section 210(b)(6)(A) of the Act restricting the use of such information, and to rescind the action granting adjustment of status.
The Service acknowledges that the only evidence it has to establish that the respondent committed fraud in applying for lawful temporary residence is that provided by the respondent in connection with his original application for temporary residence. The respondent emphasizes the statutory and regu latory restrictions limiting the use of evidence deemed confidential under section 210 of the Act and reasserts his position that the rescission proceed ings were properly terminated on the merits by the Immigration Judge.
III. STATUTORY AND REGULATORY RULES OF CONSTRUCTION
As stated by the United States Supreme Court, there is “no more per suasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” Perry v. Commerce Loan Co., 383 U.S. 392, 400 (1966), reh‘g denied, 384 U.S. 934 (1966). If the
The same is true of regulations. Diaz v. INS, 648 F. Supp. 638, 644 (E.D. Cal. 1986) (citing Malat v. Riddell, 383 U.S. 569, 571 (1966)). It is assumed that the legislative purpose is expressed by the ordinary or plain meaning of the words used. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); Matter of Fesale, 21 I&N Dec. 114, 117-18 (BIA 1995); see also Malat v. Riddell, supra, at 571.
In addition, a statute or regulation should be construed so that effect is given to all its provisions, so that no part of it will be inoperative or super fluous, void or insignificant. See 2A Norman J. Singer, Sutherland Statutory Construction § 46.06 (4th ed. 1984); see also Matter of Grinberg, 20 I&N Dec. 911 (BIA 1994). It is a court‘s duty “‘to give effect, if possible, to every clause and word of a statute.‘” United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting Inhabitants of Montclair Township v. Ramsdell, 107 U.S. 147, 152 (1883)). “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Ass‘n of Texas v. Timbers of Inwood Forest Assoc., 484 U.S. 365, 371 (1988); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987); see also Diaz v. INS, supra, at 644 (holding that when analyzing regulations, “if possible, all ambiguities are to be resolved in favor of an interpretation consistent with the statutory and reg ulatory scheme,” and citing United Telecommunications, Inc. v. Commissioner, 589 F.2d 1383, 1390 (10th Cir. 1978), cert. denied, 442 U.S. 917 (1979)). Keeping these rules of construction in mind, we now turn to the statutory and regulatory sections at issue.
IV. ANALYSIS
A. Rescission Proceedings
Section 246(a) of the Act directs the Attorney General to rescind a prior action granting a person adjustment of status to that of an alien law fully admitted for permanent residence if it appears to the “satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status.” Section 246(a) of the Act provides, in pertinent part, as follows:
If, at any time within five years after the status of a person has been otherwise adjust ed under the provisions of section 245 or section 249 of this Act [1255 or 1259] or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status . . . . (Emphasis added.)
In the regulations implementing section 246, the Attorney General pro vided that if it appears that a person was not, in fact, eligible for the adjust ment of status that was granted, a proceeding shall be commenced by the district director by way of service of a notice of intent to rescind.
The regulations also provide that if the respondent admits the allega tions in the notice to rescind or if no answer is timely submitted, the district director shall rescind the previous grant of adjustment of status.
Based on this language, we find that the statute and regulations grant the Immigration Judges and, consequently, this Board jurisdiction over rescission proceedings pursuant to section 246, including those brought to rescind adjustment of status granted under section 210 of the Act.
B. Determination of Eligibility and Confidentiality of Information
The statute and regulations also govern whether we (and the Immigration Judges) are permitted to consider information that was pro vided in connection with a respondent‘s original application for temporary resident status in determining whether to rescind the lawful permanent res ident status subsequently granted the respondent. Pursuant to section 210(a)(1) of the Act,
The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the Attorney General determines that the alien meets the following requirements.
The regulations specifically define the terms determines and determi nation as used in the statute to describe the adjudicatory process. Pursuant to regulation,
Determination process as used in this part means reviewing and evaluating all infor mation provided pursuant to an application for the benefit sought and making a deter mination thereon. If fraud, willful misrepresentation of a material fact, a false writing or document, or any other activity prohibited by section 210(b)(7) of the Act is dis covered during the determination process the Service shall refer the case to a U.S. Attorney for possible prosecution.
This reading is consistent with the statutory provision for confidential ity of information. Pursuant to section 210(b)(6)(A) of the Act,
[N]either the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—
(i) use the information furnished by the applicant pursuant to an application filed under this section [i.e., an application for adjustment of status by a special agricultur al worker] for any purpose other than to make a determination on the application, including a determination under subsection (a)(3)(B), or for enforcement of paragraph (7) . . . . (Emphasis added.)
We find the language employed by Congress in these sections and the implementing regulations to be clear and unequivocal. That is, the informa tion provided by the respondent in support of his or her application for law ful temporary residence may not be used for any purpose other than to determine eligibility, or to terminate temporary resident status prior to the alien‘s adjustment of status to that of a lawful permanent resident, or to penalize an alien who files an application for adjustment of status and knowingly and willfully engages in conduct that amounts to falsification,
The Service argues, however, that although the use of confidential information ordinarily would be prohibited pursuant to section 210(b)(6)(A) of the Act, the use of such evidence is permissible in rescis sion proceedings because such proceedings constitute a “later determina tion of ineligibility for adjustment of status.” The Service contends that to hold otherwise is to accept
that Congress intended for temporary resident status obtained through fraud and/or misrepresentation to be subject to termination under the provisions of § 210(a)(3) of the Act, but did not intend for permanent resident status to be . . . rescinded under the provisions of § 246 of the Act under the same circumstances.
According to our reading of the plain language of the statute, we find that this is exactly what Congress intended.2
Of course, the Service is not precluded from introducing evidence of fraud obtained from an independent source in the context of rescission pro ceedings. However, for purposes of the matter before us on certification, the use of information provided by the alien in connection with his initial appli cation for lawful temporary residence is prohibited.
Were we to adopt the Service‘s characterization of the instant proceed ings, i.e., that, in essence, they involve a redetermination of the respondent‘s original application and thus are exempt from the confidentiality provision in section 210 of the Act, we would have to conclude that we lack jurisdic tion to determine the specific issues raised by the Service‘s appeal.3 While
We emphasize that there is a distinction between the instant proceeding involving rescission of adjustment of status and an initial determination on an application for lawful temporary residence. Specifically, a rescission hearing is a proceeding in which a benefit already received is removed or rescinded. By definition, as such a proceeding can take place only after adjustment of status has been granted, it is not a determination or even a redetermination on the original application. Moreover, in contrast to the express provision allowing the Service to terminate temporary resident sta tus during the 1-year period before an alien‘s status is adjusted to that of a lawful permanent resident, there is no statutory authority for terminating or rescinding lawful permanent resident status based on information original ly provided by the alien once his status has been adjusted. Cf. Section 210(a)(3)(B)(i) of the Act.
Section 210(b)(6)(A) of the Act clearly limits the use of information submitted by an applicant in connection with an original determination of eligiblity for temporary resident status. Furthermore, as stated above, the regulations do not authorize the Board to redetermine eligiblity, or to con sider evidence obtained in connection with the original application for tem porary resident status, in the context of proceedings to rescind adjustment of status under section 210 of the Act.
IV. CONCLUSION
In light of the foregoing, we hold that we clearly have jurisdiction over the respondent‘s rescission proceedings pursuant to section 246 of the Act. Furthermore, we find that the Immigration Judge properly determined that the use of confidential information, such as that sought to be submitted by the Service in the instant case, is prohibited in rescission proceedings, or for any purpose other than to make a determination on an application for law ful temporary residence, to terminate such temporary residence, or to pros ecute an alien for fraud during the time of application. Consequently, because the Service did not present any evidence that would be admissible to establish that the respondent‘s status should be rescinded, we conclude
ORDER: The decision of the Immigration Judge terminating pro ceedings is affirmed.
Vice Chairman Lori L. Scialabba did not participate in the decision in this case.
CONCURRING OPINION: David B. Holmes, Board Member, in which Lauri Steven Filppu, Philemina M. Jones, and Anthony C. Moscato, Board Members, joined
I respectfully concur. I find that the Immigration Judge properly termi nated the rescission proceedings brought against the respondent under the provisions of section 246(a) of the Immigration and Nationality Act,
In addition to the evidentiary issue addressed by the Immigration Judge and the majority, this case presents the broader question whether a grant of lawful permanent residence under the provisions of section 210(a)(2) of the Act,
In this regard, I note that section 246(a) of the Act cannot be used to rescind a grant of lawful temporary resident status. Moreover, adjustment to permanent residence under section 210(a)(2) is unusual in that it involves
In the case before us, the respondent had been granted lawful tempo rary resident status under section 210(a)(1) of the Act, and that status had not been terminated before the date for adjustment specified in section 210(a)(2). See section 210(a)(3) of the Act (regarding termination of tem porary residence); see also
Notes
[L]egalization programs in other countries have usually produced a low rate of partic ipation among the eligible candidates. At least part of the reason is distrust of author ity and lack of understanding among the undocumented population. The Committee hopes that by working through the voluntary agencies, the Attorney General might be able to encourage participation among undocumented aliens who fear coming forward.
. . .
The files and records kept by the organizations are confidential, and not accessible to the Attorney General or any other governmental entity. The applicant must consent to the application being forwarded for official processing. The confidentially [sic] of the records is meant to assure applicants that the legalization process is serious, and not a ruse to invite undocumented aliens to come forward only to be snared by the INS.
H.R. Rep. No. 99-682(I), at 73 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5677. The Act and regulations provide that fraud in the special agricultural worker applica tion process can be addressed by termination of temporary residence before the alien becomes eligible for adjustment of status or by referral for criminal prosecution. See sections 210(a)(3)(B)(i), (b)(7) of the Act;